It is safe to say that Brexit and the Covid pandemic have affected the civil justice system in a variety of ways over the last couple of years. We are still waiting to see the full impact of Brexit and whether various changes introduced as a result of Covid are here to stay. On top of this, there are a number of changes being proposed by the Government that may be introduced during the course of 2022. We outline a few key topics and changes to look out for in 2022 below.
Lugano Convention – Will we be allowed to sign up?
The UK made an application in April 2020 to join the Lugano Convention. The Lugano Convention provides a similar framework to the Brussels (Recast) Regulation which ceased to apply on 1 January 2021 and sets out a system of automatic recognition and enforcement of civil and commercial judgments between member states, making this process much more streamlined than it would otherwise be.
The UK requires all current contracting parties (the EU, Iceland, Norway and Switzerland) to provide consent before it can join the Lugano Convention. To date, the EU has failed to provide its consent and the matter has been referred to the Council of the European Union for all EU member states to vote on. You can access our previous update on this topic here.
Are we heading for the introduction of compulsory Alternative Dispute Resolution (ADR)?
The Civil Justice Council (CJC) has published a report following its review of ADR. The CJC concluded that compulsory ADR is compatible with Article 6 of the European Convention on Human Rights and is lawful. The CJC also considered under what circumstances, in what type of case and at what stage compulsory ADR should be imposed.
It has been acknowledged that more work is needed to determine the types of claims and situations in which compulsory ADR would be appropriate, but there does seem to be a push towards the introduction of ADR as a means of resolving civil disputes. You can access our previous update on this topic here.
Proposed overhaul of the Human Rights Act 1998 (HRA)
On 5 October 2021, the Lord Chancellor and Justice Secretary announced the overhaul of the HRA stating that, amongst other things, it intends to prevent individuals convicted of crimes from using the HRA for their own gains. On 14 December 2021, the Ministry of Justice published a consultation to reform the HRA and replace it with a Bill of Rights. This consultation will close on 8 March 2022 and any responses must be submitted online.
The HRA has become woven into many aspects of English law and our legal system and we wait to see how far-ranging these changes will be.
Remote / hybrid hearings – are they here to stay
Remote and hybrid hearings were introduced as a result of the Covid pandemic when face to face hearings were not possible. It looks like both fully remote and hybrid hearings are here to stay with the court embracing the wider use of technology.
It is anticipated that over the next few months the courts will be providing guidance on what types of cases and hearings will automatically take place remotely and the criteria which will be applied to determine whether other hearings should be held remotely, as hybrid hearings or as in-person hearings. This will provide court users with more certainty going forward. You can access our previous update on this topic here.
Proposed changes to Damages Based Agreements (DBA)
DBA’s are a form of funding arrangement between a solicitor and its client which entitles the solicitor to payment, in the event of a successful outcome, based on an agreed % of the damages recovered.
It has been acknowledged that the current DBA regulations lack clarity and certainty on a number of key issues. This has resulted in a very low number of DBA’s being entered into. In our previous update on this topic can be accessed here.
After an independent review on the effectiveness of the current DBA regulations, it has been proposed that the regulations be amended to:
1. Ensure that third-party funding is not caught by the DBA Regulations;
2. Clarify whether recoverable costs fall outside of the DBA payment;
3. Reduce the maximum percentage recovery in certain cases;
4. Allow hybrid DBAs; and
5. Allow DBAs to be used by both claimants and defendants
The proposals are only proposals at this stage and are subject to review by the Government. However, the Government has previously indicated its intention to reform the DBA Regulations so as to provide the required clarity and certainty which it hopes will lead to DBA’s becoming a viable funding option.